COURT FILE NO.: FS-19-42419
DATE: 20221017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.O.
Applicant
– and –
D.O.
Respondent
Ms. Ursula Cebulak, for the Applicant
Mr. Robert Kostyniuk, for the Respondent
HEARD: April 19, 20, 21, 22 and September 13, 14 and October 11, 12, 2022
Conlan J.
REASONS FOR JUDGMENT
I. What This Case is All About
[1] This is a sad case. The husband is very ill. He is in his mid-sixties and is undergoing treatment for advanced cancer. The wife is nine years younger than the husband and operates a licensed daycare business. They married in early 2007 and separated, at the latest, in 2018. They share a child together, a young man who will be 18 years old in a few months.
[2] Nevertheless, the litigation rages on, even in some instances when the husband is too sick to attend the proceedings.
[3] There are several issues, but some are uncontested such as a divorce and decision-making responsibility for the child, and the contentious matters all involve money or property – child support including section 7 expenses, spousal support, whether the husband is owed money from the wife for giving her a significant amount of cash for her business, and chattels.
[4] The case was tried before this Court commencing on April 19, 2022 and ending on October 12, 2022, although with a substantial pause in the middle.
II. A Brief Summary of the Evidence at Trial
The Husband
[5] The husband, T.O., testified first for his side of the case. He rambled incessantly, swore repeatedly during his testimony, presented as scattered, demonstrated a poor memory, and was difficult to follow, however, some of that may be due to his history of substance abuse and what we now know to be his very serious health condition (though that was not known at the time that he testified at first instance).
[6] According to the husband, the wife’s daycare business was bought in May 2002 for $175,000.00. The money was advanced by his company, and the wife signed a promissory note acknowledging the debt.
[7] The next year, the wife moved in with him at his house in Oakville. Their son was born in early 2005. The husband’s company and its parent based out of Chicago, in the former of which he had a 50% interest and his brother had the other half interest, wanted there to be a marriage contract in place for all owners. The couple married in 2007. A marriage contract was signed in late 2009 (Exhibit 7).
[8] The marriage was rocky. There was police involvement in September 2016, and the husband was charged with assaulting his wife. He was found guilty. Shortly after a family trip to Mexico in May 2018, the marriage ended.
[9] The husband was candid in admitting that he struggled with alcohol abuse during the marriage. He described having nightmares of a dead friend lying in a pond, images that he stated continue to haunt him to this day.
[10] The husband made a lot of money between the years 2005 and 2008, as reflected in the tax return documents marked Exhibits 1 through 4 – between a low of $239,455.22 in 2006 and a high of $594,564.34 in 2007.
[11] The husband testified that he had to pay $750,000.00 to the Chicago company between 2010 and 2012. It had something to do with a loss that the company blamed him for. In October 2013, the company owned by the husband and his brother severed ties with the Chicago operation.
[12] Besides that company owned with his brother, there were at least two other numbered companies owned wholly by the husband – a numbered company “743” and another numbered company “449”.
[13] In October 2016, the husband received $310,000.00 for his half interest in a building, and that money went into 449.
[14] Between February 2014 and February 2016 or February 2017, the husband worked as the president of a company called AC Transport. His next job was as the president of another trucking business, Bruce R. Smith, which employment ended after about two or three weeks because of a lack of clientele, according to the husband. Exhibit 5 is the termination letter from Bruce R. Smith dated April 6, 2018. The husband has not worked since that termination.
[15] When the husband testified in April 2022, we did not know about his advanced cancer diagnosis. Looking back on his evidence at the time, however, it is sad to be reminded of what he said. He described then some pain in his upper abdominal area and a recent hospitalization for that pain (the cancer is in his stomach area). He also described an enlarged prostate, back problems, arthritis, high blood pressure, gastrointestinal problems, and depression and anxiety.
[16] The husband has other children besides the son that he shares with the wife.
[17] The husband currently lives in a home in Collingwood. That home is in his name. He cannot get life insurance. He has no driver’s licence.
[18] The husband testified that, post-separation, he paid to the wife a total of $15,000.00, $500.00 monthly for thirty months, to go towards expenses for the child.
[19] Exhibits 8-10 are three cheques written by the husband for the wife’s daycare business - $50,000.00 on September 30, 2013, $120,000.00 on October 18, 2013, and $171,000.00 on December 19, 2013.
[20] According to the husband, these advances of money were always treated as loans. They had to be repaid. He pointed in his evidence to an unsigned promissory note for the total sum of $400,000.00 (Exhibit 11), prepared by his then lawyer, which was to be executed by the wife on behalf of her daycare business and personally. He also pointed to a demand letter from his counsel (not Ms. Cebulak) to the wife dated December 5, 2020 (Exhibit 12).
[21] The husband testified that the wife admitted the total loan when they met with his financial advisor, Don Levy, in early 2018.
[22] The husband testified that, in 2019, the wife sent him a text acknowledging the total loan and proposing a way to pay it back.
[23] The husband testified that he wants several chattels that he was never able to recover from the home in Oakville – an antique blanket box, an antique cabinet, a wooden bench, a steel safe, wicker patio furniture, a patio coffee table, a barbeque, some paintings, and four leather barstools.
[24] Much of the cross-examination of the husband at trial focussed on his criminal record and his history of substance abuse. The husband has multiple convictions for crimes of dishonesty and crimes against the administration of justice, including breach of probation, driving while disqualified, and breach of recognizance. He has been to jail before. He denied having been charged with any criminal offence since the year 2020.
[25] In cross-examination, the husband stated clearly that (i) he is not asking that the wife pay any of these alleged loans personally but rather just her daycare business, and (ii) he never amended his pleadings to add any of his companies as a party.
[26] In cross-examination, the husband admitted to a myriad of errors in his Financial Statement sworn on April 11, 2022 (Exhibit 6). He explained all of the discrepancies by saying that he thought that the document was more of a “budget” for future potential expenses than anything else.
[27] In cross-examination, the husband was asked for an explanation as to why he is claiming $29,000.00 from the wife (half of $58,000.00) regarding his TD Bank line of credit as of the date of separation. The husband had no answer to that question.
[28] In cross-examination, the husband admitted that there is nothing signed by the wife or on behalf of the wife’s daycare business that acknowledges any total loan from the husband or the husband’s company of $400,000.00 or any other amount.
[29] In cross-examination, the husband testified that, upon the severance of the relationship between the company owned by him and his brother and the outfit in Chicago, the husband received six cheques from the Chicago company totalling $456,334.68 (after conversion from U.S. to Canadian funds).
[30] After a lengthy hiatus, this trial resumed on September 13, 2022. The husband presented then with an appearance that was strikingly different than when he had testified back in April 2022. He was visibly much thinner, with significant hair loss, and he looked extremely ill. This Court granted permission for the husband to be re-called as a witness, subject to cross-examination, to give to the Court some evidence about his current medical circumstances.
[31] The husband testified that he has been diagnosed with cancer. A mass was found in his stomach area just before he testified in April 2022, and in fact he was taking morphine at the time that he testified in April 2022. Shortly after that trial testimony, the formal diagnosis was made. He is now taking chemotherapy. He continues to take morphine. His life expectancy is uncertain.
John Franchi
[32] Mr. Franchi was called as a witness at trial by the husband.
[33] Mr. Franchi saw the husband and the wife as their relationship counsellor.
[34] Exhibit 31 is Mr. Franchi’s letter addressed to both parties dated February 5, 2016. That letter references a debt owed by the wife’s business to the husband in the amount of $381,346.00.
Don Levy
[35] Mr. Levy was called as a witness at trial by the husband.
[36] Mr. Levy was the husband’s financial advisor for many years.
[37] Exhibit 32 is Mr. Levy’s report dated February 22, 2018. Mr. Levy met with both parties, together, on that same date. That report references $400,000.00 being owed by the wife’s business to the husband. Mr. Levy testified that there was no dispute at the meeting about the $400,000.00 indebtedness.
[38] In cross-examination, Mr. Levy was adamant and stated that, for certain, there was discussion that day (February 22, 2018) about the $400,000.00 loan, and that the indebtedness is also reflected under the heading “other liabilities”, where it says that “[the wife’s business] has a loan to [the husband] for $400,000.00”.
James Carson
[39] Mr. Carson was called as a witness at trial by the husband. He is the wife’s brother-in-law.
[40] Mr. Carson stated simply that he cannot provide any evidence to confirm any alleged loan from the husband to the wife or to the wife’s business.
The Wife
[41] The wife called one witness at trial – herself.
[42] D.O. has two children – the young man that she shares with T.O. and a daughter from a prior marriage.
[43] Regarding the chattels that the husband wants, the wife testified that she will give to him the antique blanket box and the wooden bench. The other items she testified were already recovered by the husband (such as the paintings), or they were thrown out as junk (like the wicker patio furniture), or they are hers to keep (like the leather bar stools).
[44] The wife is the owner and operator of a daycare business licensed by the Province of Ontario for 74 children. The COVID-19 pandemic has had a serious adverse impact on the business, but it continues to operate and is now in the process of recovering financially.
[45] The wife acknowledged that the husband paid for the initial purchase of the daycare business.
[46] The daycare business is actually owned by a numbered company, “201”. The wife is the sole shareholder and director and officer of 201.
[47] The wife acknowledged that she signed documentation, personally and on behalf of 201, for the $175,000.00 owed to 449 (the husband’s company) with respect to the purchase of the daycare business (see Exhibits 36 and 37). The wife admitted further that the $175,000.00 has never been repaid in whole or in part, and in fact it has never been demanded to be repaid.
[48] With respect to the three cheques written by the husband for $50,000.00, $120,000.00, and $171,000.00 (Exhibits 8-10), the wife testified that those amounts were simply given to her by the husband. There was never any discussion about a loan, or security, or a personal guarantee. The money was used for leasehold improvements at a new location for the daycare business.
[49] The wife testified that, during the meeting with Mr. Levy on February 22, 2018, it was the husband (not her) who stated that the daycare owed to the husband $400,000.00.
[50] With reference to Exhibits 11 and 28, documents from May 2015, the wife testified that those were the last things that she saw that demanded her acknowledgement of debt owing to the husband or his company until the husband commenced the within Court proceeding (his Application was issued on July 18, 2019 and was amended two years later).
[51] The wife testified that the parties separated on September 13, 2016, when he hit her and was arrested and charged by the police, though he later returned to the Oakville home and stayed living there until sometime in 2018. They had sexual relations up until 2018.
[52] The wife testified that she was never on and never used the husband’s TD Bank line of credit.
[53] The wife testified that she paid for everything for the Oakville home after the husband left in 2018.
[54] Exhibit 40 is the wife’s taxation Notice of Assessment dated September 13, 2022, showing a total income of $67,093.00.
[55] Exhibit 53 is the wife’s updated section 7 expenses list, showing a total of $44,971.50 allegedly paid by her and zero paid by the husband but for one payment for hockey in the amount of $1762.24.
[56] In cross-examination, it was demonstrated that the wife continued to show that she was “married” on her tax returns in 2016 and 2017, and that she only changed that status to “separated” in 2018 (Exhibits 43-45).
[57] It turns out that this Court need not determine the date of separation, but I observe that if it was otherwise I would have accepted the husband’s separation date over that suggested by the wife.
[58] In cross-examination, the wife acknowledged that her Financial Statement sworn on March 25, 2022 shows a total income of $70,679.16.
[59] In cross-examination, the wife admitted that she puts some personal expenses through her daycare business, such as gasoline, some food, and cellular telephone charges.
[60] In cross-examination, the wife admitted that the marriage contract (Exhibit 7) speaks of a “loan” from the husband’s company to the daycare business (section 23.1), and she admitted that the husband always referred to the advances as “loans”, and she admitted further that she also used the term “loan” when speaking with others like Mr. Franchi.
[61] In cross-examination, the wife stated that the entire $381,346.00 advanced by the husband to her in 2013 was comprised of gifts.
[62] In cross-examination, the wife, contrary to an express concession made by her counsel at the start of the trial, disputed the authenticity of a text message that she sent to the husband in 2019, in which she referred to a “loan”.
[63] In cross-examination, the wife admitted that she never objected in any way when the husband was referring to the $400,000.00 as a “loan” during the meeting that the couple had with Mr. Levy. She explained her failure to object or disagree by saying that she did not want to “rock the boat”.
[64] In cross-examination, the wife had no explanation for why her daycare business’ financial statements (Exhibit 48) refer to loans owing to the husband’s companies.
[65] In cross-examination, the wife admitted that she did not adhere to the marriage contract when she moved her new boyfriend into the Oakville home in January 2020 without the husband’s consent.
John Carusi
[66] Without objection, Mr. Carusi was called at trial as a reply witness for the husband.
[67] Mr. Carusi is a retired professional accountant. He was the accountant for many years for the wife’s daycare business.
[68] Exhibit 48 is a set of financials for the company that owns the daycare business. Under “related party transactions”, $397,479.00 is shown as owing by the company to the wife personally, and $40,346.00 is shown as owing by the company to the husband’s company.
[69] Mr. Carusi testified that, in September 2019, he and his accounting firm were told by the wife that the husband’s company was no longer active and, thus, she would be paying the $40,346.00, once she receives that amount from her company, to the husband personally.
[70] In cross-examination, Mr. Carusi stated that what the wife said in September 2019 was that, if the money is found to be owing to the husband’s company, she would be paying the $40,346.00 personally.
[71] In cross-examination, Mr. Carusi stated that the wife never told him that she or her business was loaned $397,479.00 or some other amount. He also stated that none of the financial statements and none of his notes shows any loan due to the husband or his company, except the $40,346.00.
III. The Crux of the Case on the Contentious Issues, as per Counsel’s Submissions
[72] Neither counsel spent any time in closing submissions on the law, except that Ms. Cebulak referred very briefly to some authority regarding the imputation of income test, Drygala v. Pauli, 2002 CanLII 41868 (ON CA), and to some authority on the distinguishment between a gift and a loan, Locke v. Locke, 2000 BCSC 1300.
[73] The case was argued almost entirely on the basis of the credibility of the parties and the other witnesses and what factual findings this Court should make further to its credibility analysis.
IV. The Issues Not in Dispute
[74] First, the wife seeks a divorce. The husband does not oppose that relief.
[75] Clearly, that relief sought is appropriate in that (i) the parties have been separated for well more than one year, (ii) they have no hope of reconciliation, and (iii) the child is well-provided for.
[76] This Court therefore orders that the parties shall be divorced. The divorce order shall take effect immediately.
[77] Second, the wife seeks sole decision-making authority for the child and other parenting orders under section 16.1(1) and the following provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as recently amended. The husband does not oppose that relief. The husband does not seek any parenting orders.
[78] Clearly, although the child is nearly an adult, that relief is appropriate in that the wife has been the primary caregiver for the child since separation, and the child’s best interests would have that continue for as long as he is a dependant.
[79] This Court therefore orders that the wife shall have sole decision-making responsibility for the child.
[80] There is no reason for the Court to order anything other than that, in terms of parenting. The child already lives with the wife and will soon decide for himself where he lives. No order is needed under clauses (a), (c), or (d) of section 16.1(4) of the legislation.
V. The Issue of Spousal Support
[81] This issue should have never been litigated at trial. It was a waste of the Court’s resources to hear anything about it between April and October 2022.
[82] Everyone agreed to have a preliminary trial on the specific issue of the validity of the marriage contract (Exhibit 7). That trial was held over three days in May 2021, with extensive viva voce evidence presented. This Court reserved its decision and then ruled, in written reasons, that “[t]he Contract is valid”, T.O. v. D.O., 2021 ONSC 3949, at paragraph 42.
[83] One of the reasons argued on behalf of the wife in May 2021 for the setting aside of the marriage contract was alleged unconscionability. That argument was expressly rejected by the Court as having not been pleaded by the wife and having not been the subject of any evidence at trial whatsoever.
[84] Now, having already litigated the matter of the validity of the marriage contract, the wife submits that section 17.7 of that contract, which provision it is admitted on behalf of the wife would, if enforced, mean that she is entitled to no spousal support, is not enforceable because it is too vague and is unconscionable.
[85] The vagueness argument was never raised when it could and should have been. The unconscionability argument was raised and flatly rejected by the Court in its earlier ruling.
[86] The marriage contract is valid. Period. It is an abuse of process to try to relitigate the validity of the contract, including section 17.7 therein, a second time.
[87] This Court orders that there shall be no spousal support payable by the husband to the wife.
VI. The Issue of Child Support, Including Section 7 Expenses
[88] Neither party’s position is reasonable on this issue.
[89] The husband asks that this Court go back in time and vary the temporary Order made in January 2021 which, for child support purposes, imputed an annual income of $100,000.00 to the husband, effective November 2020. The reasons for that decision are reported at T.O. v. D.O., 2021 ONSC 342.
[90] Specifically, the husband wants his annual income to be imputed at $50,000.00 for the period between January 2018 and December 2021. Further, he wants his annual income to be fixed at zero commencing on January 1, 2022.
[91] Neither request is reasonable. On the former, nothing heard in the evidence at trial causes this Court to revisit the appropriateness of the $100,000.00 annual income figure for the husband for the time period specified, and no submissions were made by counsel for the husband as to what evidence at trial would or could have caused that revisiting. On the latter, even the husband’s own evidence does not substantiate a change in his medical circumstances before April 2022, so there would be no rationale to having his annual income fixed at nil as of January 2022.
[92] The wife wants the husband’s income to remain to be attributed at $100,000.00 per annum. That is unreasonable in that it ignores an obvious material change in that the husband has been diagnosed with cancer and is undergoing regular chemotherapy sessions. This Court accepts the evidence of the husband in that regard, and this Court has observed the drastic changes in his physical appearance since April 2022. The wife’s argument that there is no independent medical evidence before the Court is correct but unpersuasive. I believe the husband about his current health, and there is no question that his current health and the treatment therefor would be reasonably expected to impact on his ability to be employed and to earn an income.
[93] In April 2022, albeit before the formal cancer diagnosis was made, but after the husband was already feeling ill and experiencing abdominal pain and the other ailments complained of, the husband testified in examination-in-chief that he thought that he could earn about $35,000.00 per year but was not resiling from his trial position, as reflected in the opening statement delivered by Ms. Cebulak, that his income ought to be imputed at $50,000.00 annually.
[94] I appreciate that the husband is now undergoing chemotherapy, which was not the case when he testified in April 2022. But, considering all of the evidence including not just the current medical circumstances but also the husband’s considerable assets (his Collingwood home, alone, is worth well more than one million dollars as he conceded in cross-examination at trial), his ability to pay, and the fact that child support is not likely to be payable for that much longer, I have decided to fix the husband’s annual income at $50,000.00 effective May 1, 2022 (the first day of the first month following his testimony at trial in April 2022).
[95] This Court orders that the temporary child support Order previously made shall be confirmed for the period up until April 1, 2022, inclusive.
[96] This Court orders further that, commencing May 1, 2022 and on the first day of each consecutive month thereafter, the husband shall pay child support as per the Federal Child Support Guidelines based on an imputed gross annual income of $50,000.00.
[97] Counsel shall have the specific Table amount included in the draft Final Order when it is presented for issuance. The child support shall continue to be enforced through the Family Responsibility Office, and a new Support Deduction Order shall issue.
[98] Regarding section 7 expenses, in terms of arrears, I accept the evidence of the wife that she is owed money from the husband on account of the items outlined in Exhibit 53, however, I do not know what amount she is claiming or how she calculates that. Is it 66.7% of the new total, in accordance with clause 6 of the old draft order filed on CaseLines?
[99] Despite the Court’s express request, counsel for the wife filed no updated draft Order in time for the preparation of these reasons.
[100] This Court grants leave to the wife to clarify this issue, and only this one substantive issue, when it comes time to deliver the written closing submissions on the costs of the trial.
[101] This Court orders that there shall be no credit of $15,000.00 in favour of the husband on account of alleged child support payments made by him post-separation. Those alleged payments and their purpose are not supported by any trial evidence except for the testimony of the husband, and on this point, given the frailties of his evidence generally, I am not persuaded by it.
[102] Going forward, given the Court’s decision on what the husband’s annual income shall be effective May 1, 2022, there is no reasonableness to the wife’s suggestion that the husband pay for half of the section 7 expenses. And there is equally no basis to attribute to the wife an annual income of some $130,639.00, as submitted on behalf of the husband. The fact that the wife puts a few personal expenses through her daycare business cannot justify nearly doubling her actual annual income.
[103] This Court orders that, from the date of these reasons onward, all section 7 expenses shall be divided between the parties on the ratio of 60% paid for by the wife and 40% paid for by the husband (based on their respective incomes of about $70,000.00 per annum for the wife, according to her Financial Statement sworn on March 25, 2022, which evidence I accept, and $50,000.00 imputed to the husband).
VII. The Wife’s Request for $5000.00 in Costs for a Prior Motion
[104] This relief is denied.
[105] The wife wants the Court to award to her some costs for the attendance on January 14, 2021. As the Court’s Endorsement of that same date reflects, T.O. v. D.O., 2021 ONSC 342, there was mixed success on that day. The husband’s request to amend his pleading was granted, unopposed. The wife’s request for custody (as it was then called) was granted, unopposed. The wife’s request for child support was granted but on the basis of an imputed income much lower than what she was requesting ($100,000.00, as opposed to $150,000.00 to $200,000.00). The husband had suggested an imputed income to him of $50,000.00 per annum.
[106] Against those facts, there is no basis to now, nearly two years later, award costs to the wife for what was decided on that date in January 2021.
VIII. The Chattels
[107] This Court orders that the wife shall, within ten calendar days of the date of these reasons, deliver to the husband the antique blanket box and the wooden bench.
[108] Otherwise, the husband’s claim is dismissed. I accept the evidence of the wife that the other items have already been recovered by the husband or were thrown out as junk, and I am not going to force the wife to surrender four stools that she is currently using in her kitchen.
IX. The Loans
[109] Although much time was spent on this issue at trial, it is not particularly difficult to decide.
[110] In a case where the parties offer starkly divergent views on the issue, and where there is cogent evidence from third parties that is directly germane to the issue in contention, it will come as no surprise to the objective reader that the Court places considerable reliance on that third party evidence.
[111] Mr. Carusi testified that, in September 2019, he and his accounting firm were told by the wife that the husband’s company was no longer active and, thus, she would be paying the $40,346.00, once she receives that amount from her company, to the husband personally.
[112] In cross-examination, Mr. Carusi stated that what the wife said in September 2019 was that, if the money is found to be owing to the husband’s company, she would be paying the $40,346.00 personally.
[113] I accept the evidence of Mr. Carusi.
[114] Of course that sum of money, the $40,346.00, is owing to the husband’s company, and now it is owing to the husband personally. The wife made an admission against her own self-interest to her long-time and trusted accountant, and in those circumstances the admission is reliable evidence. That the admission was qualified by making the payment conditional upon the Court’s finding that the debt exists is unimportant, as the evidence of Mr. Carusi himself proves that the debt exists. The financial statements that he prepared on behalf of the wife’s company clearly show the debt, and his own notes show the debt – that is precisely why Mr. Carusi answered the questions in cross-examination at trial the way in which he did, when he stated that the financials and his notes do not show any loans except for the $40,346.00.
[115] Thus, this Court orders that the wife shall pay to the husband the sum of $40,346.00.
[116] As for the rest of the money being claimed, there is nothing that this Court can do to assist the husband.
[117] In a sense, that is unfortunate because I have no hesitation in concluding that the advances made were loans. They were not gifts. They were not investments in some joint enterprise, something not testified to by the wife but argued by her counsel in closing submissions. The finding of fact that the advances were loans is supported fully by the evidence of both Mr. Franchi and Mr. Levy, the only two third party witnesses whose evidence is directly on point.
[118] Mr. Carson’s evidence is useless to either side on this issue. Unlike Mr. Franchi and Mr. Levy, he never had the opportunity to even discuss the issue with both parties together.
[119] Mr. Carusi’s evidence is not inconsistent with that of Mr. Franchi and Mr. Levy. In fact, it supports it in part because it confirms a loan totalling about $397,000.00. Although Mr. Carusi’s documentation shows that amount as being due to the wife personally from her own company, we know that to be false because it is common ground that she never paid the advances. The money came from the husband, we know that from all of the evidence at trial including the wife’s own testimony. Whether that was disclosed to Mr. Carusi is neither here nor there.
[120] The evidence of Mr. Franchi and Mr. Levy was totally unshaken in cross-examination. I accept it.
[121] The problem for the husband, however, is that, in the absence of a trust claim by the husband over the daycare business, the husband is saddled with the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, as amended. And that limitation period had clearly expired well before the claim with respect to the loans was made.
[122] The Amended Application, dealing for the first time with the loans, was made in January 2021. This Court’s most generous treatment of the start of the limitation period would be as of the date of separation put forward by the husband, soon after the family trip to Mexico in May 2018. Two years from then expired well before January 2021.
[123] Ms. Cebulak’s submission that the Court should treat the start of the limitation period as being the date that the husband’s original Application was issued, July 2019, with respect, makes no sense. The debts accrued way back in 2013. Certainly, at the very latest, the husband knew when he was thrown out of the Oakville house in mid-2018, and the parties separated for good, that the money advanced by him was not going to be repaid without a lawsuit on his part.
[124] Aside from the $40,346.00, which sum this Court could not in good conscience deny to the husband given the wife’s own statements to her accountant, the husband is just plain out of time. His claim is framed in contract and debtor/creditor principles. It is clearly subject to the two-year limitation period. That limitation period expired before the claim was made.
[125] The husband has very good counsel; he should have made all of the facts known to his lawyer, Ms. Cebulak, long before I suspect he did. The result is unfortunate for him.
X. Conclusion
[126] Except where expressly provided for otherwise herein, all claims by both parties are dismissed.
[127] A Final Order shall issue in accordance with these reasons. That Final Order shall be taken out by counsel without delay.
[128] Regarding costs, there has certainly been some divided success in the matter. Counsel and the parties ought to keep that in mind.
[129] It is time to end the litigation, for the sake of the health of the husband and for the sake of the child.
[130] If costs are pursued and cannot be agreed upon, the Court will accept written submissions, with the following directives. Either side seeking costs shall file written submissions with thirty calendar days of the date of these reasons. The other side shall respond within fifteen calendar days of his/her counsel’s receipt of the requesting party’s written submissions. No reply is permitted by either side. Each submission shall be limited strictly to three pages in length, excluding attachments.
[131] The wife has leave to address the issue about Exhibit 53, referred to above, regardless of whether she files submissions on costs. Of course, the husband can respond on that issue.
Conlan J.
Released: October 17, 2022
COURT FILE NO.: FS-19-42419
DATE: 20221017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.O.
Applicant
– and –
D.O.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: October 17, 2022